Warrantless surveillance lawsuit thrown out

A federal district judge has dismissed a lawsuit over warrantless surveillance …

Federal district judge Vaughn Walker has rejected lawsuits that aimed to hold telecommunications companies accountable for their role in a controversial warrantless surveillance program that was orchestrated in secret by the federal government. The Electronic Frontier Foundation and American Civil Liberties Union are preparing to appeal the dismissal.

The warrantless surveillance program is one the more contentious controversies that still lingers from Bush's tenure in office. The Bush administration attempted to leverage the State Secrets privilege to block litigation that aimed to hold participants in the surveillance program accountable for violating privacy laws. When it became clear that the courts were going to allow the lawsuits to move forward, Congress intervened and passed a FISA amendment to grant the telecom companies explicit immunity. President Obama voted in favor of immunity, despite consistently promising to oppose it.

EFF and ACLU's lawsuits against the telecoms are among the most significant pending lawsuits targeting the warrantless surveillance program, and they are viewed by privacy advocates as a means of bringing accountability and more robust judicial oversight to the surveillance mess. Judge Walker has thrown out the suits, citing the FISA telecom immunity amendment as the basis for dismissal. He affirmed that the evidence provided under seal by the government demonstrated that the conduct of the telecoms meets the criteria for immunity grants.

The ACLU and EFF argued that the surveillance program was so broad and far-reaching that it necessarily extended beyond those boundaries and should not be entitled to protection. They contend that the function of the surveillance program was not to detect or prevent terrorist attacks, but to broadly enable collection of communication records regardless of whether those records are specifically needed.

"While plaintiffs have made a valiant effort to challenge the sufficiency of certifications they are barred by statute from reviewing, their contentions under section 802 are not sufficiently substantial to persuade the court that the intent of Congress in enacting the statute should be frustrated in this proceeding in which the court is required to apply the statute," Walker wrote in his decision. "The court has examined the Attorney General's submissions and has determined that he has met his burden under section 802(a). The court is prohibited by section 802(c)(2) from opining further."

The EFF and the ACLU are planning to launch an appeal, asserting that the FISA amendments which granted telecom immunity are unconstitutional.

"We're deeply disappointed in Judge Walker's ruling today," said EFF Legal Director Cindy Cohn in a statement. "The retroactive immunity law unconstitutionally takes away Americans' claims arising out of the First and Fourth Amendments, violates the federal government's separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law."

The Obama administration has indicated that it has no plans to hold the telecoms or previous administration accountable for alleged illegal activity. It will continue to sit on the details of the surveillance program and will not help to facilitate any of the ongoing litigation. It's looking increasingly likely that the telecoms will get a free pass and the true scope of the Bush administration's surveillance program will never be known.

Update: An EFF lawyer wrote in to point out that the suit filed by the EFF against the government on behalf of the Al-Haramain Islamic Foundation is still ongoing. Judge Walker has only thrown out the lawsuits against the telecoms. The Al-Haramain case will proceed in September.